Judge upholds families' right to file lawsuits

September 10, 2003|By Lisa Anderson and Susan Chandler, Tribune staff reporters. Lisa Anderson reported from New York, with Susan Chandler in Chicago. National correspondent Stevenson Swanson also contributed from New York.

NEW YORK — A federal judge, ruling that airlines could reasonably foresee the possibility of terrorists using hijacked aircraft to cause death and destruction on the ground, cleared the way Tuesday for lawsuits by families who claim loved ones were killed or injured in the Sept. 11 attacks because of negligent security by the airlines, the planes' builder and the owner of the World Trade Center.

The ruling, based on cases brought on behalf of about 70 victims, came two days before the second anniversary of the attacks, which killed 3,016 people at the trade center, the Pentagon and on board the jet that crashed into a field in Shanksville, Pa.

The 49-page decision clarified the compensation options available to victims and their families, who must choose between filing a claim with the federally funded Victim Compensation Fund by Dec. 22 or filing a lawsuit.

It also held out the possibility that more details of the security measures taken by the airline companies and the safety procedures followed by the trade center management would emerge through the discovery process prior to trial.

"This is the best news I've had in two years," said widow Monica Gabrielle, whose husband, Rich, worked for Chicago's Aon Corp. on the 103rd floor of the trade center's south tower. "To have this ruling come out two years later, it's the first time we have any hope of accountability and responsibility."

Gabrielle is a co-founder of the Skyscraper Safety Campaign, an advocacy group of Sept. 11 family members that wants building codes strengthened nationwide to help prevent building collapses in the event of future terrorist attacks.

The group charges that fireproofing and evacuation planning were inadequate at the trade center, which was owned by the Port Authority of New York and New Jersey, and it wants the regional transportation agency to make its trade center records public.

U.S. District Court Judge Alvin Hellerstein, ruling in New York, did not address the merits of the plaintiffs' cases or the liability of the defendants. He simply established that plaintiffs have a legal right to sue because the defendants owed "legal duties" to them, including providing proper security screening at the airport, designing secure cockpit doors, and taking adequate safety precautions concerning fire and the evacuation of the office towers. It will be up to the plaintiffs to prove that the defendants failed to fulfill those obligations.

The defendants are: American Airlines and United Airlines, each of which operated two planes that were hijacked and crashed that day; Boeing, the manufacturer of the four jets, and the Port Authority of New York and New Jersey.

The airline defendants had tried to have the lawsuits dismissed, asserting that their duties were limited to their passengers and crew and did not extend to victims on the ground and that they could not reasonably have anticipated that terrorists would hijack planes and crash them into buildings. Hellerstein rejected those arguments.

Acknowledging that terrorists had never before used such tactics, Hellerstein said airlines "reasonably could foresee" that a crash "causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane." He said security screening existed to prevent such harm from happening to those on the plane and on the ground. At the time, however, box cutters such as those used by the terrorists on the planes were not confiscated during screening.

Regarding the trade center, Hellerstein said the law requires land owners to protect tenants and visitors from foreseeable harm caused by the criminal conduct of others while they are on the premises. Given previous litigation concerning inadequate fireproofing of the towers and the fact that there was a terrorist attack against the trade center in 1993, he said, "It is enough to have foreseen the risk of serious fires within the buildings and the goals of terrorists to attack" the towers.

As for Boeing, he said, "the terrorists' unauthorized entry into the cockpit was not unforeseeable."

American, United and Boeing said they would appeal the ruling to the 2nd Circuit Court of Appeals. The Port Authority said it would not comment on litigation. "The issue at hand is terrorism and not any kind of negligence," said Boeing spokesman John Dern.

Any payment from lawsuits would not be likely to have major financial consequences for American or United. A law passed in the wake of the attacks limited the airlines' financial liability to the maximum amount of insurance carried on each flight, which is $1.5 billion. That means the carriers are looking at a maximum liability of $3 billion apiece, which would be paid by their insurance companies.

Even so, both could be embarrassed by information about their operations that could come out in the discovery process, the kind of information that might not be "good for business," said James Kriendler, an aviation disaster lawyer in New York.